LEGAL | LEGAL Other than as disclosed below, we do not expect any litigation or proceeding pending or threatened against us to have a potential material effect on our financial condition, results of operations or cash flows. FERC Tariff and Declaratory Order: Because of increased pressure by states to regulate our rates and charges with impact in other states setting up untenable conflict, we sought consistent federal jurisdiction by FERC. This was accomplished with the addition of non-cooperative members in 2019, specifically MIECO, Inc. as a Non-Utility Member on September 3, 2019. On the same date, we became FERC jurisdictional for our Utility Member rates, transmission service, and our market based rates. We filed our tariff for wholesale electric service and transmission at FERC in December 2019. The request was made to FERC to make the new tariffs retroactive to September 3, 2019. In addition, on December 23, 2019, we filed our Petition for Declaratory Order ("Jurisdictional PDO") with FERC, EL20-16-000, asking FERC to confirm our jurisdiction under the Federal Power Act and that FERC’s jurisdiction preempts the jurisdiction of the Colorado Public Utilities Commission ("COPUC") to address any rate related issues, including the complaints filed by United Power, Inc. ("United Power") and La Plata Electric Association ("LPEA") with the COPUC. On March 20, 2020, FERC issued orders regarding our Jurisdictional PDO and our tariff filings. FERC’s orders generally accepted our tariff filings and recognized that we became FERC jurisdictional on September 3, 2019, but did not make the tariffs retroactive to September 3, 2019. However, FERC specifically provided that no refunds are due on our Utility Member rates and our transmission service rates prior to March 26, 2020. FERC did not impose any civil penalties on us. FERC also did not determine that our Utility Member rates and transmission service rates were just and reasonable and ordered 206 proceedings to determine the justness and reasonableness of our rates and wholesale electric service contracts. FERC also rejected our Board Policy 115 (“BP 115”) and member project contracts related to our Utility Members’ election to provide up to 5 percent of their electric power requirements pursuant to their wholesale electric service contracts on the grounds that the initial filing was incomplete without Board Policy 101 (“BP 101”) related to the self-supply in excess of the 5 percent annual allowance. The tariff rates were referred to an administrative law judges to encourage settlement of material issues and to hold a hearings if settlements is not reached. Any refunds to the applicable tariff rates would only apply for sales after March 26, 2020. The settlement proceedings for both our Utility Member rates and our transmission service rates are continuing. On April 30, 2021, we filed a proposed settlement agreement related to our Utility Member stated rate, including BP 115, BP 101, and Board Policy 119 (“BP 119”), with FERC for approval, as further discussed below. FERC’s March 20, 2020 order regarding our Jurisdictional PDO denied our requested declaration regarding the preemption of the United Power and LPEA proceeding at the COPUC stating the proceeding was not currently preempted. On April 13, 2020, we filed a request for rehearing limited to the issue of preemption of the United Power and LPEA proceeding at the COPUC related to the contract termination payment amount as described in our Jurisdictional PDO. Requests for rehearing related to both the Jurisdictional PDO and tariff filings were filed with FERC by other parties, including United Power. On August 28, 2020, FERC issued an order (“August 28 Order”) on rehearing related to our Jurisdictional PDO which modified its March 20, 2020 decision by finding exclusive jurisdiction over our contract termination payments and preempting the jurisdiction of the COPUC as of September 3, 2019. The August 28 Order also set aside requests for rehearing filed with FERC by other parties related to the Jurisdictional PDO. Requests for rehearing related to FERC’s August 28 Order were filed with FERC by United Power and LPEA. On October 28, 2020, FERC issued an order denying the requests for rehearing filed by United Power and LPEA. On July 1, 2020, we re-submitted our BP 101, BP 115, and all existing member project contracts with FERC for acceptance and on August 28, 2020 FERC accepted the filings effective August 31, 2020. FERC also ordered a 206 proceeding to determine whether our July 1 filed documents are just and reasonable and set them for settlement and hearing procedures, which were consolidated with the ongoing settlement and hearing procedures in effect for our member rates docket. FERC also established a refund effective date related to our July 1 filed documents of September 1, 2020. A request for rehearing related to this FERC order was filed with FERC by United Power. In November 2020, FERC issued an order addressing the arguments for rehearing raised by United Power and modified its August 28, 2020 order with the same result in the proceeding. United Power has filed a petition for review with the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit Court of Appeals") related to FERC’s acceptance of our July 1 filed documents and such matter is being held in abeyance pending resolution of the Jurisdictional PDO appeal discussed below. On October 19, 2020, we filed our BP 119 related to our community solar program that provides for our Utility Members to develop community solar projects up to specified annual output limits separate from and in addition to the 5 percent self-supply provision of the wholesale electric service contracts and our first community solar contract with a Utility Member with FERC for acceptance. On December 18, 2020, FERC accepted BP 119 and the community solar contract, to be effective December 19, 2020, subject to refund. FERC referred it to FERC’s hearing and settlement judge procedures, which were consolidated with the ongoing settlement and hearing procedures in effect for our member rates docket. On July 13, 2020, we filed a petition for review with the D.C. Circuit Court of Appeals to protect our interest, and requested review of FERC’s order granting in part and denying in part our Jurisdictional PDO and FERC’s order granting rehearings for further consideration. Petitions for review related to both the Jurisdictional PDO and tariff filings have been filed with the D.C. Circuit Court of Appeals by other parties, including United Power. On September 18, 2020, FERC filed to hold the appeals in abeyance. On September 29, 2020, an order was issued considering the motion to hold the case in abeyance, directing the parties to file motions to govern future proceedings by January 11, 2021. FERC, United Power, and the other parties reached agreement on the procedures and schedule for the Jurisdictional PDO and abeyance on all non-Jurisdictional PDO matters and such filing was made to the D.C. Circuit Court of Appeals. On April 30, 2021, we filed a proposed settlement agreement related to our Utility Member stated rate, including our wholesale electric service contracts, BP 115, BP 101, and BP 119, with FERC for approval. With the exception of four reserved issues contingent on United Power being a settling party, the proposed settlement resolves all issues set for hearing and settlement procedures related to our Utility Member rates. The proposed settlement provides for us to implement a two-stage, graduated reduction in the charges making up our Class A rate schedule of two percent starting from March 1, 2021 until the first anniversary and four percent reduction (additional two percent reduction from current rates) thereafter until the date a new Class A wholesale rate schedule is approved by FERC and goes into effect. The proposed settlement rates will remain in effect at least through May 31, 2023 and during such time period, we and the settlement parties have agreed, with limited exceptions, to a moratorium on any filings related to our Class A rate schedule, including any rate increases to our Class A rate schedule. We have also agreed to file a new Class A rate schedule after May 31, 2023 and prior to September 1, 2023. During the moratorium, we will establish a rate design committee to oversee the development of the new rate. Three of the reserved issues are related to the transmission component of our rates and the fourth relates to our community solar program. Additionally, with the exception of one reserved issue regarding transmission demand charges applicable to certain electric storage resources, each of the reserved issues will have prospective effect only, with the intent that any FERC rulings would be implemented in future rate filings. This proposed settlement agreement is subject to FERC’s approval. We also filed a motion with FERC’s Chief Judge seeking immediate implementation, effective as of March 1, 2021, of the two percent rate reduction, pending FERC’s approval of the proposed settlement. On May 5, 2021, the Chief Judge issued an order granting implementation of the proposed settlement rates effective as of March 1, 2021 pending FERC’s consideration of the proposed settlement agreement. In connection with the proposed settlement anticipated to become effected as of March 1, 2021, our Utility Member electric sales revenue and results of operations does not include approximately $1.7 million of revenue associated with the two percent rate reduction for March 2021. Such amount is being held in reserve. It is not possible to predict if FERC will require us to refund amounts to our customers for sales after March 26, 2020 on outstanding issues, if FERC will approve our current practices regarding use of regulatory assets are just and reasonable, if FERC will accept our proposed settlement agreement filed on April 30, 2021,if settlements will be reached without a hearing on outstanding issues, or to estimate any liability associated with these matters. In addition, we cannot predict the outcome of the 206 proceedings or any petitions for review filed with the D.C. Circuit Court of Appeals. LPEA and United Power COPUC Complaints . Pursuant to our Bylaws, a Utility Member may only withdraw from membership in us upon compliance with such equitable terms and conditions as our Board may prescribe provided, however, that no Utility Member shall be permitted to withdraw until it has met all its contractual obligations to us, including all obligations under its wholesale electric service contract with us. On November 5, 2019, LPEA filed a formal complaint with the COPUC alleging that we hindered LPEA’s ability to seek withdrawal from us. On November 6, 2019, United Power filed a formal complaint with the COPUC, alleging that we hindered United Power’s ability to explore its power supply options by either withdrawing from us or continuing as a Utility Member under a partial requirements contract. On November 20, 2019, the COPUC consolidated the two proceeding into one, 19F-0621E. A hearing was held on May 18-20, 2020. On July 10, 2020, the administrative law judge issued a recommended decision, but the COPUC on its own motion stayed the recommended decision. On September 18, 2020, LPEA and United Power filed a Joint Motion to Lodge FERC’s August 28 Order, and asserting additional corporate law arguments related to the legality of our addition of Non-Utility Members. We filed a response on September 29, 2020. On October 22, 2020, the COPUC determined that COPUC’s jurisdiction over United Power and LPEA’s complaints was preempted by FERC, the COPUC does not have jurisdiction over corporate law matters, and dismissed both complaints without prejudice. On November 25, 2020, LPEA and United Power jointly filed an application for rehearing, reargument, and reconsideration with the COPUC of its October 22, 2020 decision. The COPUC denied LPEA's and United Power's November 25 application, which denial became final on December 28, 2020. On January 27, 2021, United Power filed a Writ for Certiorari or Judicial Review, an appeal, in the Denver County District Court, 2021CV30325, of the COPUC's decision to dismiss United Power's complaint. On February 17, 2021, the Denver County District Court granted our unopposed motion to intervene as a defendant in United Power’s appeal of the COPUC’s dismissal. On April 30, 2021, United Power filed its opening brief of petitioner. It is not possible to predict the outcome in this matter. United Power's Adams District Court Complaints : On May 4, 2020, United Power filed a Complaint for Declaratory Judgement and Damages in the Adams County District Court, 2020CV30649, against us and our three Non-Utility Members alleging, among other things, that the April 2019 Bylaws amendment that allows our Board to establish one or more classes of membership in addition to the then existing all-requirements class of membership is void, the April 2020 Board approvals related to a “Make-Whole” methodology for a contract termination payment and buy-down payment formula are also void, that we have breached the wholesale electric service contract with United Power, and that we and our three Non-Utility Members conspired to deprive the COPUC of jurisdiction over the contract termination payment of our Colorado Utility Members. On June 20, 2020, we filed our answer denying United Power’s allegations and request for relief, and asked the court to dismiss United Power’s claims. We asserted counterclaims against United Power, and are seeking relief from United Power’s breach of our Bylaws and declaratory judgement that the April 2019 Bylaws amendment and the April 2020 Board approvals related to a “Make-Whole” methodology for a contract termination payment and buy-down payment formula are valid. On June 20, 2020, the three Non-Utility Members filed a joint motion to dismiss. United Power filed its response on July 30, 2020. On December 10, 2020, the Non-Utility Members motion to dismiss was granted. On December 23, 2020, United Power sought to amend its May 2020 compliant to add LPEA as an additional plaintiff and to add the claims from its November 2020 complaint, discussed below, into its amended complaint and to dismiss the November 2020 complaint against us. The court has not yet decided whether United Power will be granted leave to file its amended complaint. In addition, on November 23, 2020, United Power filed a Complaint for Declaratory Relief in the Adams County District Court, 2020CV031496, against us seeking for the court to declare that our addition of the Non-Utility Members violated Colorado law. On December 11, 2020, we moved to dismiss United Power's November 2020 compliant because it repeats the claims pending in the May 2020 complaint proceeding. The court has not yet ruled on our motion. It is not possible to predict the outcome of these matters or whether we will incur any liability in connection with these matters. |